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Speech in Senate Chamber: Senator Cools speaks to Bill C-13, An Act respecting the declaration of royal assent by the Governor General in the Queen's name to bills passed by the Houses of Parliament, and the need for Royal Consent to bills affecting the Royal Prerogative.

On the Order:

Resuming debate on the motion of the Honourable Senator Lynch-Staunton, seconded by the Honourable Senator Kinsella, for the second reading of Bill S-13, respecting the declaration of royal assent by the Governor General in the Queen's name to bills passed by the Houses of Parliament.—(Honourable Senator Cools).

Hon. Anne C. Cools: Honourable senators, I rise to speak to second reading of Bill S-13. Bill S-13 is wholly concerned with Her Majesty's Royal Prerogative, specifically her prerogative of Royal Assent. Consequently, it needs a Royal Consent for Parliament to even debate it. I said this on June 9, 1998 when this same subject- matter was contained in Bill S-15, and on December 1, 1999 when it was contained in Bill S-7, at which time I even tried to amend the second reading motion asking that it not be read the second time until its sponsor had fulfilled the proper, prescribed parliamentary procedure and obtained the Royal Consent preliminary to second reading.

Today I assert again that Bill S-13 requires the Royal Consent preliminary to second reading. This is the prescribed procedure laid down by the two fundamental laws, the law of parliament, the lex parliamenti, and the law of prerogative, the lex praerogativa. The authorities and parliamentary jurisprudence dictate thus. I shall cite them. First, there is Beauchesne. Beauchesne's Rules & Forms of the House of Commons of Canada, 6th Edition, paragraph 727.(1) states:

727.(1) The consent of the Crown is always necessary in matters involving the prerogatives of the Crown. This consent may be given at any stage of a bill before final passage; though in the House it is generally signified on the motion for second reading. This consent may be given by a special message or by a verbal statement by a Minister, the latter being the usual procedure in such cases. It will also be seen that a bill may be permitted to proceed to the very last stage without receiving the consent of the Crown but if it is not given at the last stage, the Speaker will refuse to put the question. It is also stated that if the consent be withheld, the Speaker has no alternative open except to withdraw the measure.

Honourable senators, on several occasions many senators have raised the question of the need for Royal Consent to this class of bills, bills that touch the interests of the sovereign, Her Majesty, Queen Elizabeth II. Last June 2000, when the Senate debated the Clarity Bill, Bill C-20, some of us raised this very question, asserting that Bill C-20 required the Royal Consent. On June 20, 2000, we spoke to a point of order. We were right. Bill C-20 required the Royal Consent. Some days later, Senator Bernard Boudreau, Leader of the Government in the Senate, gave it. On June 29, 2000, Senator Boudreau announced the Royal Consent saying:

Honourable senators, I have the honour to advise this house that Her Excellency the Governor General is pleased, in the Queen's name, to give consent, to the degree to which it may affect the prerogatives of Her Majesty, to the consideration by Parliament of a bill entitled `An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference'.

This adds much weight to my assertions that Bill S-13, solely and wholly concerned with the Royal Prerogative, requires the Royal Consent, which means Her Majesty's approval of Parliament's consideration and debate of her interest in this bill, being her prerogative of Royal Assent to bills, and Her Majesty's parliamentary role as the Queen in Parliament. I absolutely insist that this bill needs the involvement, consent and approval of Her Excellency, Governor General Adrienne Clarkson, prior to its introduction and debate here.

Honourable senators, we are told that this Bill S-13 is fundamentally similar to the United Kingdom's 1967 changes to the royal assent procedure, that is, their Royal Assent Act 1967. Previously, on February 22, 2000, in debate on Bill S-7, I had pointed out that, in that United Kingdom instance, the Royal Consent was obtained from Her Majesty prior to the bill's second reading. Again I shall restate these facts. That United Kingdom Royal Assent Act had originated in the House of Lords. There the Royal Consent had been announced by the Lord Chancellor. On March 2, 1967, before second reading, the Lord Chancellor, Lord Gardiner, announced it, saying:

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Royal Assent Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Having done this, the Lord Chancellor then moved second reading of that bill. Weeks later, on April 17, 1967, the Attorney General, Sir Elwyn Jones, did the same in the House of Commons, saying:

I have it in Command from the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

It is uncontroverted that Her Majesty's consent is required for this Bill S-13 which touches her prerogative and interests in the form and procedure of giving Royal Assent, that critical constitutional act which gives bills the force of law and transforms bills into acts of Parliament.

Honourable senators, on December 14, 1999, in ruling on Senator John Lynch-Staunton's point of order on my proposed amendment to Bill S-7, the Senate Speaker, the late Senator Gildas Molgat, said the following:

It is now necessary to address the more substantive question concerning the possible need to signify Royal Consent.

As Senator Cools stated in her intervention, Royal Consent is required whenever a bill proposes to affect either the prerogative of the Crown, its hereditary revenues, personal property or interests. With respect to this case, there is no doubt that the only issue involved with Bill S-7 is that of the Royal Prerogative.

Clearly the bill affected the Royal Prerogative. Senator Molgat continued:

I would suggest, however, that, if this bill receives second reading, the issue of Royal Consent be studied by the committee to which it is referred as part of its examination.

I have reviewed the proceedings of the Standing Senate Committee on Privileges, Standing Rules and Orders and have found no study of this question. Further I could find no mention whatsoever of the points that I raised in that debate. It is as though the committee had no knowledge of my points, questions or speeches. However, now, a year later, the situation has changed dramatically. Circumstances and events around last year's Clarity Bill, Bill C-20, overtook that committee's study because of the evidence placed before the Senate about the requirements for Royal Consent and the Royal Prerogative. Again I shall say that this bill needs the agreement of Her Excellency Governor General Adrienne Clarkson prior to its introduction and debate here.

Honourable senators, I move now to private members obtaining Royal Consent for their bills, because Bill S-13 is a private member's bill. It is Senator Lynch-Staunton's bill. As was shown by Senator Bernard Boudreau, the Royal Consent must be announced in this chamber by a minister, a member of the Privy Council. That is one of the reasons that the Leader of the Government in the Senate must be a minister and Privy Councillor. The process of obtaining the Royal Consent by a private member is different from obtaining that consent by the ministry. A private member can only obtain the royal consent by an address, that is, by moving a motion for an address to Her Majesty, or to Her Majesty's representative, praying for her approval, her Royal Consent, to place the issue before Parliament. The private member's first step is to ask the Senate and its members to agree to seek the Governor General's approval. Second, the Governor General must then agree to the address. The authorities Todd, Beauchesne, and Bourinot tell us this about the address. Alpheus Todd's 1892 edition of his Parliamentary Government in England states:

But where a public bill of this description is proposed to be initiated by a private member, and not upon the responsibility of ministers, the House ought to address the crown for leave to proceed thereon, before the introduction of the same;...

Beauchesne's, sixth edition, paragraph 728, states:

In any case where a private Member wishes to obtain the consent of the Crown, the Member may ask the House to agree to an Address for leave to proceed thereon before the introduction of the bill.

Sir John George Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, 1916, stated the same:

In any case where a private member wishes to obtain the consent of the Crown, he may ask the house to agree to an address for leave to proceed thereon, before the introduction of the bill. The consent should be properly given before the committal of the bill,...

These three are unanimous that the law of Parliament, the lex parliamenti, prescribes the parliamentary procedure that private members must move a motion to secure this house's agreement to obtain leave of the Governor General to proceed. Honourable senators, every senator has a right to debate and vote on asking the Governor General to agree. Any attempt to deprive any senator of that right is a breach of privileges and a breach of the law of Parliament. The process for determining the need for Royal Consent is the debate on the motion for the address itself, a parliamentary fact that seems to elude many.

Honourable senators, this bill's sponsor is not only a private member, but is in opposition. For opposition members seeking the Royal Consent, the parliamentary procedure of a motion for an address to Her Majesty becomes more compelling; it becomes absolute. The two most famous precedents on the opposition, both in the United Kingdom, are that of William Ewart Gladstone in 1868 in the House of Commons and Lord Lansdowne in 1911 in the House of Lords.

First, on May 7, 1868, William Gladstone, while in opposition moved an address for the Royal Consent, said:

...in this instance, the case is different. The interest of the Crown in this case is not merely a proprietary interest,but one of wide and far-reaching import; and also this is a Bill which, although it is not proposed by the Government, would be, I may say, proposed on behalf of a very large proportion of the Members of this House, acting together generally in its support. Now, that being so, I have felt, with the advice and concurrence of others, that it was my duty not to claim the entire liberty which the House has accorded to its Members; but to ask the House to present an address requesting the Assent of the Crown, and allowing us to deliberate upon this subject before any Motion be made in the House for the introduction of the Bill.

This is the eminent former Liberal Prime Minister of England, William Gladstone, speaking. He was Leader of the Opposition at the time.

The House must debate the matter prior to the bill. The other famous precedent was by Lord Lansdowne, an eminent constitutionalist, once a Governor General of Canada. On March 30, 1911, Lord Lansdowne in opposition in the House of Lords said:

...it is certainly a breach of the law of Parliament to pass through either House a bill affecting the Prerogative of the Crown without the assent of the Crown. I do not think any one will dispute that. We also conclude from these precedents that, although this assent may be signified at any stage, it is the proper course to obtain it before the introduction of the Bill. But we draw this further conclusion in reference to cases where the Bill is introduced, or is sought to be introduced, not by the Government, but by the Opposition. The case of the introduction of such a Bill by the Opposition is clearly a different case from the introduction of a similar Bill by the Government, because it is perfectly fair to assume that if the Government makes itself responsible for the Bill it can at any moment count upon the assent of the Crown. That, of course, is not true when the Bill is moved from the Opposition side of the House, ...

Honourable senators, let us remember that Lord Landsdowne was one of the great parliamentarians of the century. Lord Lansdowne continued:

We therefore draw the conclusion that if a Bill affecting the Royal Prerogative is brought forward by the Opposition it is indispensable that the Royal Assent should be signified before the Bill has been actually introduced, and, my Lords, that is the course which we propose, with the permission of the House, to adopt this evening.

Honourable senators, learned parliamentarians Lord Lansdowne and Mr. Gladstone were both Leaders of the Opposition when they had described the proper parliamentary procedure prescribed for opposition members. The principle is obviously that changes of such moment should only proceed either at the initiative of responsible ministers of the Crown with access to Her Majesty, or by the expression of the judgement and will of the whole house to ask Her Majesty. Senator Lynch- Staunton simply must seek and obtain the will of this Senate on the question of seeking Her Majesty's leave through the Governor General to deliberate this bill. To do otherwise is to breach the law of Parliament, the privileges of Parliament, and to breach the law of the prerogative. These two systems of law rely on each other for their maintenance, defence, and protection. Senators have a duty to ensure that Her Excellency, Governor General Adrienne Clarkson's agreement is sought and obtained prior to second reading in this chamber. It is proper, respectful, and necessary.

Honourable senators, I shall now quote the November 6, 1985 report of the Standing Committee on Standing Rules and Orders. That report proposed three recommendations about the Royal Assent. Recommendations 1 and 2 recommended substantive changes to the Royal Assent procedure itself, some of which are actually in Bill S-13. However, recommendation 3 was about the parliamentary procedure necessary to obtain the Governor General's approval of the proposed changes as the precondition to actual proposed changes as in this bill.

Recommendation 3 stated:

That representatives of the Senate meet with representatives of the House of Commons to draft a resolution for a joint Address of both Houses to be presented to Her Excellency the Governor General praying that she approve such changes to the Royal Assent ceremony as described in this Report.

Honourable senators, once again I say that that is the process that should be performed and conducted prior to the bill and prior to the consideration of the substantive questions themselves.

The Senate and the bill's sponsor, Senator Lynch-Staunton, have a duty to proceed with proper and due regard to these vital parliamentary and constitutional principles, with due regard to Parliament's law and with the respect and allegiance due to Her Majesty and her representative in Canada, Her Excellency, the Right Honourable Adrienne Clarkson.

Honourable senators, the Senate owes Her Excellency the Right Honourable Adrienne Clarkson the proper respect and dignity. Her Majesty's representative should receive no less from this chamber.

I thank Senator Lynch-Staunton for his initiative, and I would urge him again to move an address so that all honourable senators may debate the question of Royal Consent. It is my intention not to vote on this bill until I receive an indication that Governor General Adrienne Clarkson is involved in some way or other in this pressing matter of Royal Assent in Canada.

The Hon. the Speaker: Honourable senators, before Senator Lynch-Staunton speaks, he may wish to raise a point of order. If the honourable senator speaks, I am obliged to give notice to other honourable senators that his speech will close the debate.

Hon. Jerahmiel S. Grafstein: Honourable senators, I have a question and I do not intend to speak or to take the adjournment. I am not clear about Senator Cools' suggestion. Is the honourable senator suggesting that because Royal Assent is a pre-condition to debate, the bill is out of order and, therefore, we should seek, in new circumstances, a decision from the Speaker to confirm her view?

Senator Cools: Honourable senators, I thank Senator Grafstein for his question, which is important. I thought long and hard about whether to raise this as a point of order, and I believe that it is a question that concerns the entire Senate.

I said, essentially, that the process for obtaining Royal Consent is twofold. One process is to obtain Royal Assent from Her Majesty's representative by virtue of the ready access of the cabinet —

The Hon. the Speaker: Honourable senators, the allotted time for Senator Cools has expired. Senator Cools, do you request leave to continue?

Senator Cools: Honourable senators, I request leave to continue.

The Hon. the Speaker: Honourable senators, is leave granted?

Hon. Senators: Agreed.

Senator Cools: There are two ways to obtain Royal Consent. One way is through a member of the Privy Council who approaches Her Majesty and then stands on the floor of the chamber to announce the Royal Consent. The other way is to move an address. "Address" is the term used for "parliamentary conversation with the sovereign." The proper way for a private member to obtain the Royal Consent is by virtue of a motion for address.

Honourable senators, in respect of the second point raised by Senator Grafstein, the point of order was essentially about the decision, or the judgment, on whether a Royal Consent is required, is determined in the process of the debate on the address. The authorities and parliamentary jurisprudence tell us this. This is the proper way to proceed. I examined the three sets of precedents in England that occurred on three separate occasions of debate on this matter. One occurred in 1868, with Mr. Gladstone; the next one occurred in 1911, around the Lord Lansdowne speech, and a third occurred in the 1930s, which I did not raise today.

Honourable senators, the fact is that the opposition is not believed in a parliamentary process to have ready access to Her Majesty. Therefore, it is incumbent upon an opposition member, when he or she is moving private member's bills that touch on the Royal Prerogative, to seek the agreement and the judgment of the entire chamber. It is a matter on which each and every one of us should have an opinion. Each of us should be able to express that opinion. The precedents exist and they speak for themselves.

Senator Grafstein: Honourable senators, I will not belabour this issue, but Senator Cools has made it more difficult for those of us, as we listened to the argument, to decide whether we are able to vote on second reading if, in fact, it offends the prerogative of the Governor General.

Senator Cools: It does.

Senator Grafstein: If it does, and we do not have a clear-cut ruling, it will be difficult to decide. I see that Senator Lynch- Staunton is not prepared to accede to your argument, honourable senator, or to seek that consent. I have not heard him stand and say that he intends to do that. Therefore, it puts us in a much more difficult position to determine whether, in acceding to second reading, the Governor General's prerogative has been interfered with.

Honourable senators, would it not be better, in the circumstances, to seek His Honour the Speaker's advice? If we disagree with that advice, each senator may stand and express that opinion. Otherwise, we are in a position to decide individually whether we agree with the argument. We cannot even get at the substance of the bill, and Senator Lynch-Staunton knows that I have some problems with that.

Senator Cools: Senator Grafstein, I said clearly that I, personally, will not vote at second reading on this bill because I believe that the chamber, as a whole, should not take such a vote in the absence of an indication from the Governor General. That is my personal position and solution.

Honourable senators, I believe that this bill is contrary to, or at least not consistent with, the law of Parliament. I am aware that there are many who no longer know what I mean, or what we mean when we say "the law of Parliament." For example, it is said that a bill should have three readings, and yet it is written nowhere in any statute in the land that a bill should have three readings. It is a question of the law of Parliament. The law of Parliament and the parliamentary jurisprudence, for some centuries now, has always insisted that an address, in the instance of a private member, is absolutely necessary before a bill should be introduced. That is what I have said. That parliamentary jurisprudence becomes more compelling in the instance of a bill at the initiative of the opposition. The opposition is not believed to have ready access to Her Majesty.

Honourable senators, I did not raise a point of order for particular reasons. On several occasions in this chamber, we have raised the need for Royal Consent. The question has never been answered. I have received no indication that it would be answered in this particular instance.

Last June, some of us spoke in that debate on that question. Senator Joyal raised the question on a point of order as to whether a Royal Consent was required. That question was never answered. The then Speaker of the House, Senator Molgat, took the question under advisement, but never answered the question. Some days later, Senator Boudreau rose in his place, announced that the Royal Consent had been obtained and that it was in hand. The honourable senator read the Royal Consent into the record of the chamber. At that point, His Honour the Speaker rose and said that there was no need for him to rule. It would have been my preference at that time to hear the ruling, because it seemed to me that the chamber had asked him for such a ruling. It would have been good to receive the ruling.

All I am saying is that if you wish to raise a point of order, be my guest. As a matter of fact, I would be happy to support you in it. I have raised the same issue on countless occasions and have received no answer.

Senator Grafstein: Honourable senators, I will take the adjournment of the debate on this motion.

However, I say in passing that I do not think the honourable senator is correct. It is my belief, and Senator Joyal is here to confirm it, that Royal Assent was indeed obtained on or before third reading of the Clarity Bill. That is my understanding. That is why we satisfied ourselves that people voted on that particular bill after they were satisfied that Royal Assent was indeed assented.

To suggest, honourable senators, that the Royal Assent was not obtained on that bill is wrong. It was indeed assented to.

Senator Cools: I did not say that.

The remainder of this day's Senate Debates available here.